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Employers will have to be nimble in dealing with ever-changing state marijuana laws, especially because change at the federal level is unlikely, attorneys tell Bloomberg BNA.
Marijuana remains illegal under federal law, but 28 states and the District of Columbia have legalized it for medicinal purposes. Eight of those states and the District of Columbia have decriminalized marijuana for recreational use.
However, most states that have passed recreational-use legislation haven’t finalized rules on the issue, Rachel Schumacher, a partner in the Los Angeles labor and employment office of Akerman LLP, told Bloomberg BNA Feb. 10.
This complex web of legislation is only getting more challenging for multistate employers, Schumacher said. Employers have to be aware of both recreational- and medical-use marijuana laws.
Companies also have to know the details of medical marijuana laws, as they can be very specific about the type of diagnosis or disability that the drug must be prescribed for, she said. For example, New York and Nevada require employers to accommodate marijuana medicinal users, within limits, while cases in California and Colorado have allowed employers to terminate workers for off-duty medical marijuana use. “The landscape is pretty uneven,” Schumacher said.
The federal landscape for marijuana legislation remains even less clear under the Trump administration than if a Democrat had remained in the Oval Office, Schumacher said. Several administration officials have expressed opposition to legalizing marijuana at the federal level. If that’s an indication of the federal government’s approach under President Donald Trump, “it leaves states very uncertain,” Schumacher said.
As legalization for recreational use becomes more widespread, the medical world may become more stringent on what circumstances qualify for medicinal marijuana use, Schumacher said.
Employers may in turn start to narrow their accommodations in line with these more stringent medical requirements, making a distinction between employees who use recreationally or medically off-duty, she said. “That would actually be easier for employers, in certain ways,” she said. For example, it remains difficult to assess when an individual used marijuana based on a positive drug test, Schumacher said. By narrowing allowances for medical marijuana use to only certain diagnoses, “it would take some of the guesswork out for employers” because the focus would no longer be on where the drug was taken, she said.
Employers should also be prepared to address the growing variety of ways marijuana can be taken, such as via edibles, vaping or even creams, Schumacher said. And plaintiffs’ lawyers may change the way they try to frame marijuana use, likening it to Prozac or other mood stabilizers, she said.
Recreational use of marijuana, however, will probably never be forced on employers, especially when at work, Schumacher noted.
Testing employees for THC—the psychoactive compound that gives marijuana users a high—is becoming less popular as acceptance of marijuana use spreads, James Reidy, a management-side labor and employment attorney in the Manchester, N.H., office of Sheehan Phinney, told Bloomberg BNA Feb. 13.
Employers must consider whether they can effectively test for impairment. There are not many effective tests to determine when THC was ingested or how much is in a person’s system, Reidy said.
Laws in surrounding states also can complicate things. Even if an employer is in a state with tight marijuana laws, bordering state laws might be more lax. For example, Reidy said, New Hampshire has legalized medical use of marijuana, but Maine and Massachusetts decriminalized it for recreational use. In New England, it’s entirely feasible that workers in New Hampshire may live in those bordering states and vice versa, Reidy said.
Generally speaking, employers increasingly do not test for marijuana outside of safety-sensitive positions, and even when drug-testing occurs, they do not test for marijuana, he said. Many employers in the past three to five years say “the train has left the station,” Reidy added.
Schumacher said she recommends clients abandon pre-employment testing for marijuana. However, many workers’ compensation insurance plans require companies to have a zero tolerance drug policy, so employers that want those plans won’t have any flexibility over which drugs are included in the test, she said.
According to Reidy, many employers try to strike a balance by reserving the right to drug-test employees but using that policy only when someone is truly impaired or a workplace incident occurs.
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